Zardari teeters on the brink

The Supreme Court's latest judgment on the 18th constitutional amendment is a veritable Sword of Damocles over the head of President Asif Zardari's government.
The irony is that the Prime Minister, Yousaf Raza Gillani, has welcomed it as a "reprieve" of sorts from the clash between the jud

The Supreme Court's latest judgment on the 18th constitutional amendment is a veritable Sword of Damocles over the head of President Asif Zardari's government.

The irony is that the Prime Minister, Yousaf Raza Gillani, has welcomed it as a "reprieve" of sorts from the clash between the judiciary and executive that has been developing apace since the judges struck down the notorious National Reconciliation Ordinance earlier this year and accepted petitions challenging parliament's unequivocal and unfettered right to amend the constitution. Consider.

The SC took nearly five months to hear arguments for and against the 18th amendment, focusing in particular over the clauses relating to the mechanism for appointment of judges to the superior courts. After closure, the court sat down to write its judgment which was expected in the form of a short or full order. Instead, it has delivered an extraordinary "interim" order and postponed an announcement of the final judgment of the full bench to the end of January 2011. This is unprecedented.

Interim orders are normally issued at the start of a case, before the arguments have concluded, and never after the case has been "closed" for judgment. The court's intent is thus clear: if its "recommendations" and "directions" in the "interim" order are unheeded by the government and parliament in the next three months, it will strike down elements of the 18th constitutional amendment in its final order next January which will be binding on both!

The interim order has therefore avoided tackling the issue of whether or not the court can, or should, strike down constitutional amendments. If the government backtracks and parliament amends the amendment as directed by the court, the court will have no need to strike down the 18th amendment and make history! THE directions of the court in the interim order can be summarised easily.

The judicial commission (JC) for approving judicial appointments as laid out in the 18th amendment is currently comprised of seven persons - the chief justice of Pakistan (CJP), his two senior- most serving colleagues and a fourth retired judge to be appointed by the CJP; a nominee of the Pakistan Bar Council, the Attorney-General and the Law Minister.

In other words, only two out of seven will represent the executive or government. This gives the CJP four out of seven votes at least, which means he can have his say over all appointments. But no, the CJP wants "more". He wants a fifth colleague judge to be added to the JC so that, in case one of his colleagues becomes a dissenter for one reason or another, he can still rule the roost with a minimum of four judges on his side.

The court also wants the proposed parliamentary commission (PC) of eight - four each from the opposition and government - to be able to override the decision of the JC only on the basis of six out of eight votes, or 3/4th of the membership, which would be almost impossible to obtain in view of the historically hostile government-opposition relationship.

But that's not all. The court says the PC should deliberate in secrecy and convey its dissenting view, if any, in writing, giving detailed reasons and evidence for rejecting the decision of the JC in the first place. The nail in the coffin is the court's final caveat: the PC's decision is "justiciable", which means the SC can strike it down if it disagrees with it.

In order words, the ability of parliament to hold any judge to account or consider a judge's suitability for appointment is no more than a snowball's chance of surviving in the burning fire of hell!

The government has three months in which to amend the amendment to the satisfaction of the CJP or face the prospect of a striking-down of the amendment by the SC, regardless of the fact that this would be an unprecedented and extraordinary intervention, with far reaching adverse consequences for the doctrine of a "balance of powers" between an elected parliament and an independent judiciary in a parliamentary democracy.

Meanwhile, the SC is going to experiment in the next three months with the appointment of nearly 80 judges to the superior judiciary - 36 new appointments to fill high courts vacancies, 34 to confirm additional judges, five for a new high court in Islamabad, some for the Federal Shariat Court, etc - on the basis of the current law (Article 175-A) in the 18th amendment.

If the SC has its way, with the newly appointed JC and PC nodding approval without even raising an eyebrow in any case, the SC might be inclined to be lenient when the 18th amendment case is renewed at the next hearing in January 2011. But if there are some hiccups or gridlocks in the process, then we can expect the court to wield the Sword of Damocles when the time is nigh.

Nor is there any certainty that the SC will relent in its obsessive quest to undo the immunity from prosecution on criminal or corruption charges attached to the person of Mr Asif Zardari as president of Pakistan.

Indeed, if the SC moves into high gear immediately on that front and insists on compelling the prime minister to write to the Swiss authorities to reopen the money laundering case against Mr Zardari on pain of contempt of court, we should brace ourselves for fireworks much before the end-January deadline on reopening the 18th amendment case.

Already, the SC is flexing its muscle to embarrass the government for sanctioning a few Rental Power Projects which appear to be riddled with kickbacks and commissions. And the Zardari government is cosying up to the Pakistan Muslim League (Q), the pro-Musharraf and anti-Nawaz Sharif rump, in anticipation of tremors in parliament preceding any in-house regime change triggered by a clash with the judges!

- The writer is the editor of The Friday Times

Do You Like This Story? Awesome! Now share the story Too bad. Tell us what you didn't like in the comments